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I attended a conference on copyright yesterday at the CATO Institute. I'll try to provide some more detailed reports later, but first a general impression. There was a great deal of polarization among the panelists: basically rabidly for or against copyright. (You can guess which group I am in.) Jim Harper, the organizer, took a fairly middle of the road position, as did the moderators, who for the most part didn't express opinions, but they were the exceptions.

You may attribute this to bias if you wish: but my overall impression was that only the anti-copyright group tried to present evidence. "Our" group pointed to numerous facts and examples in support of our view that copyright law as it is written is a failure. The "procopyright" group seemed to rely fairly exclusively on theoretical arguments. For example, I presented evidence that copyrights do not achieve the desired goal of increasing the amount of creation. The rebuttal by Jim DeLong was along the lines of "it is inconcievable that anyone would spend the time and effort to create under these circumstances." This of course is a purely theoretical argument, and it is frustrating to have people try to rebut facts with theories about why the facts can't exist.

Another striking fact about the "procopyright" group: they seem to all be paid lobbyists. (Don't take that wrong - Gary Shapiro is also a paid lobbyist and spoke extremely eloquently against the DMCA.) Emery Simon, the general counsel of the Business Software Alliance certainly is, and the remaining panelists in the "procopyright" group were all from the Progress & Freedom Foundation, which was alleged to be funded in part by money from copyright lobbying groups. I have no idea if that is true or not, but in the case of intellectual property there is a simple test for whether pro-IP arguments are principled or not. If you argue that we have to have/strengthen IP protection to satisfy our international treaty obligations, then you are unprincipled. There are several reasons why this argument is not principled:

* The U.S. lobbied to put in the strong IP provision in the WIPO. We can certainly lobby to take them out - and we would have lots of support if we did. So if we think that something like the DMCA is too strong, but weakening it is going to violate the WIPO, then you should argue that we need to amend the WIPO first - but not that our hands are tied.

* For the most part these arguments are an outright lie. For example, it was argued that we needed the to retroactively extend copyright terms by 20 years to coordinate our law with the international standard. That was not true - and now for example, in the U.K. they are arguing (correctly) that they need to extend their term by 20 years to match what we have done.

* The whipsawing of countries - sneaking provisions into international treaties, or getting a law passed in one country then going around arguing that everyone else needs to match it - is not principled. If you think that something like the DMCA is good make your argument and stand up and count the votes. Don't sneak it into international treaties in the dark of night, then turn around and argue that this is "the rule of law."

Needless to say several of the speakers from the Progress & Freedom Foundation made the "satisfy our international treaty obligations" argument - which leads me to believe that they are acting as paid lobbyists not as intellectual observers.

Comments

Tim struck me as pretty passionate about the downside of the DMCA. I don't think many people there shared my view that copyright should be abandoned completely - but I think there was a very passionate group - including Tim Lee that argued that copyright as it is now is out of control.

Actually there is no such thing as "all rights reserved" fair use cannot be prohibited, which in the case of a blog means you can do pretty much what you want with the content. When we get around to it we will post of an appropriate creative commons license making that explicit, although legally and morally we shouldn't have to.

It sounds like Tim Lee is part of the middleground reformist camp, which includes Lawrence Lessig and Siva Vaidhyanathan on copyright (and Adam Jaffe and Josh Lerner on the patent side).
The abolitionist group includes Tom Palmer of Cato (and Timothy Lynch?).
James De Long is part of the absolutist group, which includes Jack Valenti and the various media trade groups, among others.
I think what we have to do as a strategy is pitch the reformists as well as we can, and open a dialog with them.
They tend to ignore (Vaidhyanathan) or downplay (Lessig, but this might be too generous) economic theory, in favor of cultural (Vaidhyanathan) and legal (Lessig) theory. If we can get them to see the utility of economics as applied to IP, then instead of simply assuming that IP is necessary for innovation, they might begin to rethink this position.
That could be the beginning of an intellectual epiphany.
I have no idea if Adam D. Moore is in the reformist camp, but I do know that his Lockean defense of IP (_Intellectual Property and Information Control_) has lots of problems, even on his terms.
I assume we'll be able to listen to the Cato event at its website soon.

David Levine: Perhaps "all rights reserved" is a misnomer -- default copyright anyway, which is extremely restrictive and does not mean you can do pretty much what you want with content that happens to be published in blog form.

Bill Stepp: I don't think convincing middle of the roaders to be abolitionists is a good strategy. I don't see anyone of the stature you mention going in that direction anyhow. Not many people care about intellectual monopoly yet. I'd concentrate on turning on people who do not yet care but would easily become absolitionist activists if they did -- libertarians -- all libertarians, anti-market, pro-market, anarchosocialists, ancap, or otherwise.

I think there is is a fair bit of evidence that Anglo-American IP systems do not maximize social utility -- i.e they could be modified so that incentives to innovate and access are maximized. The only other defensible view to take is that we don't know the long term consequences of these policies. If so, then the incentives based utility maximization argument fails. I would say that I am not in the reformist camp -- I do not view IP rights as "state created" entities. IP rights (moral claims) may exist prior to and independent of governments or legal systems. Our legal systems should reflect these basic moral norms...
For lots more on these topics take a look at *Intellectual Property and Information Control* (2001, 2004 Transaction Pub)
Anyway, hey Bill, What problems??

I am against the copyright laws too. I am against filesharing being illegal.

Someone stole the infamous Betty Boop cartoons, yes someone in my family (can't remember the name) but someone in my family Started the Betty Boop cartoons, yes they have been stolen and patented so he couldn't do anything about it. Betty Boop should have been MY and MY FAMILIES Profit, Not the MPAA. Their My cartoons and they got stolen by the greedy pigs.

I Will fight with you on the War On Copyright Laws.

We Will Win, I have been a victim of the MPAA and they should be destroyed.